ID v DB, 2022 ABKB 831

Court of King’s Bench of Alberta Citation: ID v DB, 2022 ABKB 831 Date: 20221209 Docket: 4803 176036 Registry: Edmonton Between: ID Plaintiff - and - DB Defendant _______________________________________________________ Memorandum of Decision of the Honourable Justice T. Friesen _______________________________________________________ I. Introduction [ 1 ] The trial of this family dispute began in March of 2021. My task at trial was to determine an appropriate parenting regime for the three children of the parties’ now dissolved marriage. The children were ages 9, 7 and 4 when the parties separated in 2016.

When the trial began, they were ages 14, 12, and 9. They are now 16, 14, and 11 years old.

[ 2 ] While initially residing primarily with their mother (Ms.

D) following dissolution of the marriage in March of 2018, the oldest child AB currently resides their father (Mr.

B) and last had parenting time with their mother on June 26, 2019. The middle child BB also resides with their father and last had parenting time with the mother on February 26, 2020. [ 3 ] Ms. D says that Mr. B has alienated her from her two eldest children, and that he is the primary cause of the conflict between them. She seeks a reversal in parenting of the two older children into her fulltime care, preceded by a transitional period where the two older children live with a neutral third party. [ 4 ] Mr. B accuses Ms. D and her new husband of various forms of child abuse and says that Ms.

D contributed to her children’s estrangement from her. He asserts that the two oldest children do not want anything to do with her, and he is simply respecting their personal choices. [ 5 ] Despite the intense conflict occurring between their parents and two older siblings, the youngest child, CB, has continued to spend roughly equal time with both parents throughout these proceedings, and on a week on/week off basis since March of 2021. This appears to work well for them and everyone else, and there is no requested or anticipated change to this arrangement. [ 6 ] The parties have a tortured litigation history.

That history is clearly reflected in the 20 + Court Orders that have been put in place since the Statement of Claim for Divorce was filed in 2016. In addition to making a variety of applications which resulted in numerous court orders, the parties, primarily Mr. B, have also sent a copious number of letters and emails to the Court. Some of that correspondence is reproduced in the parties’ various affidavits. Much of it is not. This is attributable partly to the fact that Mr.

B is self- represented and has shown little appreciation for the Alberta Rules of Court and proper trial procedure throughout the proceedings, and partly to the fact that the trial proper was adjourned for almost a year when it appeared as though the matter had been resolved by way of a parenting Consent Order part way through the giving of evidence. [ 7 ] Unfortunately, the terms of that Consent Order were not fulfilled, and though many interim applications and related Orders were made in an effort to keep the resolution on track, eventually the trial needed to be reconvened so that I could render this final decision on parenting.

II. Evidentiary record [ 8 ] In rendering my decision in this case, I have done my best to rely only on those facts which were contained in the formal court record or entered into evidence before me by way of viva voce evidence, exhibits, or affidavit evidence adopted by the swearing party on the stand. [ 9 ] I have also directed that copies of the numerous emails and other unsworn, unfiled forms of correspondence I received (and sent) over the course of the past two years be preserved in the Court file, should they need to be reviewed for any reason.

Further, any in- person meetings between myself and the parties occurred in public and were recorded by the Court clerk. [ 10 ] Finally, I sought out and relied on unfiled update letters prior to releasing these reasons. III. Facts and chronology A. 2016-2019 [ 11 ] On May 10, 2016, the Plaintiff filed a Statement of Claim for Divorce and Division of Matrimonial Property.

The parties were together for approximately ten years and have three children together: AB who is 16, BB who is almost 14 and CB who is 11. [ 12 ] When the parties first separated, they seemed to co-parent relatively well and there were very few court appearances. Between 2016 and 2018 the Court made the following Orders: Restraining Order, granted May 24, 2016, filed June 2, 2016 , which restrained Mr. B from attending the Matrimonial Home and contacting Ms. D, with some exceptions to allow for co-parenting.

Interim Without Prejudice Consent Order, granted June 10, 2016 , filed June 28, 2016, which dealt with child support and

section 7 expenses on an interim basis. Consent Order, granted and filed January 20, 2017, which dealt with parenting time and decision making. [ 13 ] The parties received a Divorce Judgment and Corollary Relief Order on March 5, 2018, which was filed March 9, 2018 . Pursuant to the Judgment, the parties had joint custody of the children. The children would reside primarily with Ms. D, with Mr. B having reasonable and generous access to be arranged between the parties, based on Ms. D’s work schedule.

B. 2019 – March 2021 [ 14 ] Beginning in March 2019 the parties began to appear in court on a regular basis, initially attributable to growing conflict between the oldest child, AB, and Ms. D. When the trial commenced in March of 2021, Ms. D had not had parenting time with AB since June 26, 2019. Eventually conflict also arose between the middle child, BB, and Ms. D. Ms. D has not had parenting time with BB since February 26, 2020. The youngest child was moving between the two households, with parenting time dependent on Ms. D’s work schedule.

[ 15 ] The parties received thirteen Orders from this Court (and one from a Justice of the Peace of the Provincial Court of Alberta) between March 2019 and November 2020, as well as a number of expert and other reports: Consent Order, granted and filed March 4, 2019, which dealt primarily with some variations to parenting time for holidays. Order, granted March 4, 2019, filed March 19, 2019, which dealt with the payment of property tax arrears. Restraining Order (Without Notice), granted and filed June 10, 2019, which Mr. B applied for on his behalf and on behalf of AB, and which restrained Ms.

D from attending at Mr. B’s residence and contacting Mr. B or AB. Restraining Order Variation, granted June 24, 2019, filed July 9, 2019 , which removed AB as a party from the June 10, 2019 Restraining Order, and continued the Restraining Order in relation to Mr. B’s residence and contact with Mr. B. Order, granted June 24, 2019, filed July 11, 2019, which continued shared parenting of all three children and provided a Peace Officer Assistance clause to ensure the Order was followed. Emergency Protection Order, granted June 26, 2019 , which Mr. B applied for on behalf of AB as against Ms. D, and restrained Ms.

D from attending at AB’s residence and contacting AB. Consent Order, granted August 16, 2019, filed September 3, 2019, which ordered no contact between Ms. D and AB, with some exceptions, and also ordered Ms. D and AB to attend at a mutually agreed upon psychologist or family counsellor, and thereafter as directed by the treatment provider. Order, granted November 1, 2019, filed November 28, 2019 , which: • ordered AB to attend counselling for reunification with Ms.

D and set out the process for choosing the psychologist; • ordered the parties to attend a second Early Intervention Case Conference (in addition to one scheduled for November 6, 2019) on or before December 20, 2019; • contained a shared parenting

schedule for the youngest two children, and noted AB would remain in the primary care of Mr.

B; • prohibited the parties from bringing applications without seeking leave of the Court (all applications to be brought before Justice Ouellette if sitting in Edmonton); and, • prohibited the parties from making complaints or reports to the Edmonton Police Service, Child and Family Services, or other similar organizations about parenting. [ 16 ] Pursuant to the Order of November 1, 2019, Erin Wilkinson, Registered Psychologist, prepared a Practice Note 7: Parent- Child Reunification Report of Therapeutic Intervention, dated December 31, 2020, in relation to AB.

Order, granted March 9, 2020, filed March 26, 2020 , which noted that Mr. B had maintained custody of AB and BB with no access to Ms. D, and ordered: • the return of BB to Ms. D’s care in accordance with the ordinary parenting schedule; • the matter be scheduled for a five day trial to address conflicts in parenting, with a request to be made for an expedited trial date; • reunification therapy for AB to continue; • appointment of counsel for the children; • a Practice Note 7 Evaluative Intervention (Voice of the Child with an Evaluative Component) to be completed by Dr.

Torres; [ 17 ] Despite the issuance of this Order, AB’s reunification therapy did not continue and BB did not return to Ms. D’s care. Consent Order, granted March 24, 2020, filed March 26, 2020, which noted that Mr. B had maintained custody of BB, with no access to Ms. D since February 26, 2020, and ordered BB and Ms. D to forthwith begin reunification counselling and attend as recommended by the psychologist. Pursuant to this Order, Erin Wilkinson also prepared a Practice Note 7: Parent-Child Reunification Report of Therapeutic Intervention, dated January 2, 2021, in relation to BB.

Consent Order, granted July 31, 2020, filed September 11, 2020, which noted the direction for reunification therapy for AB and BB, and ordered both AB and BB to attend weekly reunification counselling as directed, with Counsel for the Children booking the appointments. Neither party was to cancel the appointments. These appointments occurred remotely, and sporadically, with Mr. B making a variety of excused for interfering with scheduling of the appointments. Order, granted September 8, 2020, filed November 5, 2020 , arising out of a Pre-Trial Conference.

The trial, originally scheduled for January 4-8, 2021, was adjourned to March 15-19, 2021. The Court ordered AB and BB to attend the ongoing reunification counselling sessions in person, as recommended by the psychologist, so long as in person attendance was not prohibited by the Public Health Orders in place. Order, granted November 2, 2020, filed November 5, 2020, which dealt with property tax arrears. In the earlier Order of March 4, 2019, Mr. B was directed to pay property tax arrears of $8,390.60 in relation to the Matrimonial Home. This was not done and a lien was placed on the property.

Upon mortgage renewal by Ms. D, the property tax arrears were paid. The Court:

• declared Mr. B to be in Civil Contempt for failing to comply with the March 4, 2019 Order; • ordered Mr. B to pay the property taxes with accrued interest and penalties to Ms. D and her bank; • ordered Mr. B to pay $935.10 monthly to Ms. D until the property taxes, accrued interest and penalties were paid and proof of payment was provided to Ms. D and the bank. [ 18 ] On November 20, 2020, the Court granted a Practice Note 7 Intervention Order, which ordered the PN7 Intervention to be completed by Dr. Torres. This Order noted that AB and BB were residing solely with Mr. B. [ 19 ] Dr.

Torres submitted her Practice Note 7 Intervention Report on February 25, 2021 . [ 20 ] On March 15, 2021 , the five day parenting trial began. [ 21 ] During the trial, I heard oral evidence from Ms. D and Mr. B, and submissions from Counsel for the Children, Mr. Keller. I heard further oral evidence from Ms. D’s current husband, the children’s school principal, and a family acquaintance. [ 22 ] Dr. Torres, who conducted a Practice Note 7 Intervention and provided a Report to the Court, also testified. Dr. Torres was qualified as an expert in psychology and family dynamics. I reviewed Dr.

Torres’ Report, as well Ms. Wilkinson’s Reports, which were prepared after attempted reunification counselling between Ms. D, and AB and BB. [ 23 ] On March 18, 2021, during Mr. B’s cross-examination, he appeared to have a change of heart about his position with respect to Ms. D and her relationship with their two older children. The trial was adjourned. The parties met outside the courtroom to discuss the issues. [ 24 ] On March 19, 2021 , the parties presented me with a Consent Parenting and Support Order which I granted. [ 25 ] The March 19, 2021 Order is lengthy and includes many detailed directions.

For the purposes of this decision, the most important provisions of that Order: • appointed an Association of Family Conciliation Courts (AFCC) psychologist to assist the parties by providing Family Restructuring Therapy; • directed Ms. D, Mr.

B, and the three children to attend individual counselling; • directed the parties to obtain a psychiatric referral for AB forthwith; • ordered a review of the family’s situation six months after commencement of counselling (or earlier if requested by Counsel for the Children); • suspended all child support payments until further Order of the Court; and • stayed the payments provided for in the November 2, 2020 Order. C. March 2021 - present [ 26 ] Despite agreeing to the terms in the March 19, 2021 Consent Order, Mr.

B has largely refused to follow it. [ 27 ] Trouble started again quite quickly following adjournment of the trial, and on May 10, 2021, the parties came before me on an urgent basis. Mr. B advised that on Friday May 7, 2021, he had commenced a Practice Note 5 – Allegation of Sexual Abuse, despite a term in the March 19, 2021 Consent Order which provided that neither party shall make any complaint or report to the Edmonton Police Service, Child and Family Services, or any similar organization related to the parenting of the children or other family law issues.

The allegation referred to something said about a dream by one of the children to Dr. Torres which was recorded in her report. [ 28 ] By Order, granted and filed May 10, 2021 , I appointed Ms. Smith to provide Family Restructuring Therapy (also earlier ordered on March 19, 2021; Ms.

Smith was one of three possible counsellors named in that Order) and ordered the parties to communicate any issues with respect to children’s personal property through Counsel for the Children. [ 29 ] Shortly thereafter, on July 14, 2021, the parties appeared before me again and I granted a Practice Note 7 Intervention Order, Counselling for the Children . I noted that AB and BB were resisting parenting time with Ms. D, while the youngest child continued a shared parenting week/week schedule. I noted Ms.

Smith had commenced Family Restructuring Therapy, although that later proved to be a misinterpretation of the steps that had actually been taken. [ 30 ] The July 14, 2021 Order : • appointed Dr. Carter as Parenting Expert to carry out a Therapeutic Intervention with the children only (counselling for the children); and, • directed that Mr. B was responsible for ensuring AB and BB attended counselling sessions. [ 31 ] Several more months passed without commencement of counselling. [ 32 ] On October 29, 2021, Ms. D applied to vary the March 17 and May 10 Orders and to hold Mr. B in contempt of court. On

November 5, 2021, I granted an Order (filed December 22, 2021 ) which noted, among other things, that Mr. B had failed to take steps to commence counselling with the children as previously ordered. I ordered that: • The necessity for Mr. B’s consent for any counselling was waived and could proceed with Ms. D’s consent alone. • The trial would commence for two days February 9 and 10, 2022. [ 33 ] Also in November, I followed up with respect to the PN5 report. Investigators determined that no further steps needed to be taken in relation to the report and Mr.

B was advised accordingly. [ 34 ] On November 16, 2021 , Ms. D applied for and received a Restraining Order against Mr. B and his current wife, FB. [ 35 ] While initially set for regular Family Chambers on November 19, 2021, the Contempt of Court application was adjourned to be heard together with the trial continuation. [ 36 ] The trial continued on February 9 and 10, 2022 . We did not have time to conclude the matter in the allotted time. The continuation was initially scheduled for April, but Mr. B applied for an adjournment, which was granted, and the trial proceeded for one more day on June 3, 2022 .

At the end of the trial, I held Mr. B in contempt of court but reserved my decision on the consequences of that contempt. I also reserved my decision in relation to parenting. [ 37 ] As I have already indicated, from the end of the first part of the trial in March of 2021, to recommencement in February of 2022, and ongoing, the parties sent many items of correspondence to me by formal letter (Mr. Rollans) and informal email (Mr. B). Only some of that correspondence was put into evidence in the trial.

The rest was copied to and remains on the court file. [ 38 ] When the trial recommenced in February of 2022, I heard evidence that shortly after the March 19, 2021 Consent Order, Ms. D began to see Dr. Pickering for counselling, in accordance with that Order. [ 39 ] After some delays - for example, Mr. B’s failure to sign the requisite consents (the Court eventually waived the necessity for his consent) and a party’s illness - the children saw Dr. Carter for several sessions, in accordance with the Order. [ 40 ] On June 3. 2022 I heard evidence from Mr.

B that he was “completely on board” with the children having and continuing counselling; however, he was having great difficulties paying for that counselling and he blamed the delay in starting the process, ordered on March 19, 2021, on his inability to pay. During Mr. B’s cross-examination by counsel for Ms. D, it became clear that Mr. B had in fact failed to follow, or stopped following, many Court Orders, dating all the way back to the Divorce Judgment in March 2018. [ 41 ] As of June 2, 2022, Ms.

Smith had still not been retained to provide Family Restructuring Therapy, despite the directions in the March 19 and May 10, 2021 Orders. [ 42 ] I sought and received updates from the parties in November 2022. I received an affidavit from Ms. D, sworn November 22, 2022. I received an email from Mr. B on November 16, 2022, as well as an email on November 23, which disputed many of the statements in Ms. D’s affidavit. [ 43 ] Not surprisingly, Mr. B and Ms. D do not agree on what has occurred since June 2022. [ 44 ] In the circumstances, I rely on the update from Counsel for the Children. Mr.

Keller advises that as of November 16, 2022, the reunification therapy process has commenced, individual sessions are complete and group sessions will be arranged shortly. IV. Issues [ 45 ] The issues to be determined are therefore as follows:

A) What is the most appropriate parenting and decision-making arrangement for the two oldest children?

B) What consequences should flow from Mr. B’s contempt of court? V. Analysis

A) What is the most appropriate parenting and decision- making arrangement? [ 46 ]

Section 16 of the Divorce Act , RSC 1985, c 3 (2 nd Supp ) provides the following specific guidance for trial judges in determining parenting issues: Best interests of child 16(1) The court shall take into consideration only the best interests of the child of the marriage in making a parenting order or a contact order. Primary consideration

(2) When considering the factors referred to in subsection (3), the court shall give primary consideration to the child’s physical,emotional and psychological safety, security and well-being. Factors to be considered

(3) In determining the best interests of the child, the court shall consider all factors related to the circumstances of the child, including (

a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability; (

b) the nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents and any otherperson who plays an important role in the child’s life; (

c) each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse; (

d) the history of care of the child; (

e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained; (

f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage; (

g) any plans for the child’s care; (

h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child; (

i) the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular withone another, on matters affecting the child; (

j) any family violence and its impact on, among other things, (

i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and (ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issuesaffecting the child; and (

k) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child. Factors relating to family violence

(4) In considering the impact of any family violence under paragraph (3)(j), the court shall take the following into account: (

a) the nature, seriousness and frequency of the family violence and when it occurred; (

b) whether there is a pattern of coercive and controlling behaviour in relation to a family member; (

c) whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence; (

d) the physical, emotional and psychological harm or risk of harm to the child; (

e) any compromise to the safety of the child or other family member; (

f) whether the family violence causes the child or other family member to fear for their own safety or for that of another person; (

g) any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve theirability to care for and meet the needs of the child; and (

h) any other relevant factor. [47] In short: when making parenting decisions the Courts must not seek to reward good litigants or punish bad ones. The onlything the Court cares about is doing what is in the best interests of the children. This is clearly stated in s 16(5) as follows: Past conduct

(5) In determining what is in the best interests of the child, the court shall not take into consideration the past conduct of any personunless the conduct is relevant to the exercise of their parenting time, decision-making responsibility or contact with the child under acontact order. [48] The principle of maximum contact that is “consistent with the best interests of the child” must also be considered: DivorceAct, s 16(6). In most cases that means that a child should maintain significant contact with both parents; however, “maximum contact...must be curtailed wherever the welfare of the child requires it.

Also, when the relationship with the non-custodial parent conflicts withthe best interests of the child, the promotion of the child’s best interests must take priority over the desires and interests of the parent.”(SS v AS, 2020 ABQB 810 at paras 70-71; Young v Young, (SCC), [1993] 4 SCR 3) Parental Alienation or Estrangement? [49] Ms. D argues that evidence in this case establishes a clear case of parental alienation by Mr. B. She submits the only remedy

to address this behaviour is to reverse custody and remove the children from Mr. B’s influence for a sustained period of time. She submits that Mr. B should be incarcerated until reunification therapy is complete. [ 50 ] Mr. B argues that he has not engaged in parental alienation behaviour or conduct; rather, it is Ms. D’s fault that the children have become estranged from her. He submits that AB and BB do not want to have anything to do with Ms. D, she is largely to blame for that fact, and that it is their choice to make. Mr.

B sees himself as the children’s “protector” and will not force the children to interact with their mother. [ 51 ] The experts’ reports provide some evidence to assist in determining whether there is parental alienation or estrangement in this case. While the reports were already somewhat dated at the time the trial commenced in 2021, Ms. Wilkinson’s Report with respect to AB indicates that restrictive gatekeeping by Mr. B appears to have occurred and elements of parental alienation towards Ms. D may be present. On the other hand, Ms.

Wilkinson’s Report with respect to BB ultimately noted there were no real indications of alienation at that time and recommended that the parties continue therapy. [ 52 ] Dr. Torres advised that a more comprehensive evaluation (i.e. Practice Note 8) would be necessary for an expert to determine unequivocally whether there is parental alienation or estrangement in the situation.

She advised that she could not determine whether there was parental alienation in this case because she had not done the requisite analyses and evaluations (as she was not conducting that type of Intervention) and agreed that the Court would have to decide whether there was parental alienation and estrangement. [ 53 ] She noted that AB and BB appear to exhibit known behavioural manifestations of alienated children.

For example, she noted the following: disproportionate reaction to concerns and parental conflict; polarized views of parents; no acknowledged desire for reconciliation; rejection of/resistance to contact without guilt; magnifying the bad and not acknowledging any good in one parent; and mimicking each other and one parent in words and phrases. [ 54 ] Dr.

Torres’ made the following recommendations in her Report, which were elaborated on during her testimony at trial: • AB should have therapy without delay; • BB and CB would also benefit from therapy; • The entire family would benefit from a family-based therapeutic approach such as reunification therapy, which could involve individual therapy sessions as well as various combinations of family members in sessions together. [ 55 ] With respect to the suggestion of returning AB and BB to a shared parenting scheme, Dr.

Torres opined that therapy should be in place and ongoing before this was introduced. [ 56 ] During her testimony Dr. Torres noted that, in her view, all of the parties – Ms. D, Mr. B, AB, and BB - are contributing to alienation of the children.

They have all participated in alienating or estranging conduct and behaviours. [ 57 ] She also noted that, aside from issues of parental alienation causing children to avoid one parent, this type of behaviour is also seen in parenting situations that do not include alienation but do include high conflict since it is often easier for children to simply “pick a side” when there is high conflict between parents. [ 58 ] Although it is helpful to have expert testimony in determinations of parental alienation or estrangement, ultimately the trial judge can, and must, decide whether parental alienation or estrangement exist in a particular case ( Malhotra v Henhoeffer , 2018 ONSC 6472 at paras 100-107 , aff’d 2019 ONCA 764 ; VMB v KRB , 2014 ABCA 334 at para 16 ).

As the Court in Malhotra noted at para 107 : “Parental alienation is a legal concept as opposed to a mental health diagnosis. As such, it is my view that the court can make a finding of alienation based upon an analysis of the facts alone without expert evidence.” [ 59 ] Numerous cases have discussed parental alienation and its indicators, for example WC v CE , 2010 ONSC 3575 at para 68 and PC v WH , 2019 ABQB 616 at para 164 , citing from Malhotra at paras 108-109 . [ 60 ] In PC v WH , at para 164 , Goss J provided the following list of indicators of alienation, developed by experts and used by the courts.

I am included that comprehensive (but not exhaustive list) as “Appendix A” to these reasons. [ 61 ] Mr. Keller, on behalf of the children, argued that both parents have engaged in problematic behaviour. Ms. D has engaged in estranging behaviors and Mr. B has engaged in alienating behaviors. [ 62 ] I accept that feelings of estrangement are subjective – that is, if the children feel estranged, then there is estrangement. Further, some indications of estranging behavior by Ms.

D include: • Comments on AB’s diet and body. • Requiring AB to fold and refold clothing over and over again. • Grabbing AB by the wrist and having other (relatively minor) physical altercations. • Telling AB and BB that they should leave if they were not happy in her home. • Comments to BB about putting a “foot up their ass”. • Holding back gifts. • Asserting ownership over the children’s items and refusing to let the children remove them from the home.

• Holding back consent to travel. • Initially, refusing to acknowledge AB and BB’s feelings and refusing to apologize. [ 63 ] However, I find Mr. B’s behaviour to be far more egregious than anything done by Ms. D. Mr. B has engaged in clearly alienating behaviour towards the mother includes: • Allowing the older children to make decisions about contact, and whether to spend any time at all with their mother. For example, on March 15, 2019, when AB was a 12 year old child, Mr. B sent the following response to request from Ms.

D to have AB return to her residence for parenting time: “[AB] has made a choice based on [their] safety and well being, and I stand by it completely.” Further, a month late, on April 23, 2019, Mr. B provided the following in an email to Ms. D: “I have told you before, [AB] has chosen to live where [they] feels stability and feels safe.....

So for Friday I will again let [AB] decide as I have done this whole time...” • Refusing to take any initiative in terms of encouraging the children to call, or spend time with their mother. • Over-involving the older children in adult matters and litigation – evidenced in texts received from the children, and conversations with them after certain court applications. • Encouraging the oldest child to repeatedly apply for restraining orders against her mother, with insufficient basis for doing so, which required the child AB to testify in court. • Portrayal of their mother as a dangerous person – as indicated by support for applications for restraining order where no physical threat was present. • False or exaggerated claims of sexual, physical and/or emotional abuse, as evidenced in the PN5 report which investigators did not substantiate, and assertions made throughout the trial process about “abuse” of various kinds without sufficient examples or explanation. • Convinced of harm when there is no evidence – as indicated in his testimony at trial. • Allowing the older children to stop seeing their maternal grandparents and villainizing them. • Refusing to accept that the children have any need for relationship with their mother or her extended family. • Extreme lack of courtesy to rejected parent – with many examples of rude language, name-calling etc. directed at the mother evident in the emails and texts that were entered as exhibits at trial.

For example, on February 21, 2020, Mr. B wrote the following in an email to Ms. D: “You’re delusional... These constant emails you send must be exhausting for you or you have too much time on your hands. Get a life. And leave the children out of your pettiness. You’re angry and need help to move forward with your life and end this petty control you are trying to keep at the expensive (sic) of having a healthy relationship with my children. You’ve been harassing my family for years and using my children as collateral to get what you want.

It’s clear as day to everyone watching that you have no control because you have allowed your anger towards my family to get the better of you. It’s sad and pathetic really. Continue living in your misery.” On August 17, 2021, Mr. B wrote the following in an email to Ms. D: “Get my name off the mortgage or I will pack up my things and move back in and force you out. My children should have a place to live and with your bullshit games I have now been forced to move out of my home. See you this weekend.” • Multiple examples of the children using Mr.

B’s last name, rather than their legal hyphenated name (their mother’s and father’s last names together) including removal of the stitching of the mother’s initial on one of the children’s sports jerseys – thus removing the mother symbolically. • The children’s step-mother insisting that they call her “mom” and their mother by her first name. • The public “Go Fund Me” page which was created during the final adjournment period, which included pictures of Mr. B and the children, obviously describing the mother in inflammatory terms, which Mr. B said had been viewed by the children.

For example, a screenshot from the Go Fund Me page notes, “It’s not right for men to be abused through the court system because they are standing up for themselves. Vexatious litigants take time away from other people who actually need the courts to help them. It took courage for [Mr. B] to leave his previous relationship because it was physically, emotionally, psychologically and verbally abusive. Children should be able to enjoy their childhood and not have to live with the insurmountable stress that comes with vexatious litigants. The legal system should have methods to hold people like this accountable.

Protecting your children from abuse is the right thing to do.”

In an “update” to the page, “the mom”, (Ms.

D) is accused of lying, abuse, and bullying.

She is called a “narc” and a narcissist. [ 64 ] The fact that these alienating behaviours are deeply irrational is evident in the fact that the father has cooperated in allowing the youngest child to continue to see her mother on a week on, week off basis despite asserting that he “believes” the mother to be abusive, selfish, and dangerous. [ 65 ] AB exhibits the following behaviours indicative of a child who has been alienated from one parent: • View of their parents is one-sided, their dad is all good and their mom is all bad – dad is idealized and mom is devalued. • Knows dad may go to jail if they do not cooperate with reunification, and blames mom for this. • Child, via actions and words, has engaged in vicious vilification of mother By email dated November 13, 2021, AB informed their mother: “I would like to advise you that I will not be returning to your home because you have had your chances and you messed up multiple times by hurting me mentally and physically....trying to put dad in jail makes me less and less want to be around you, because putting him away somehow make you think we have to live with you or whatever you think is going to happen but we may be told that we must go to your house but I will sure as hell will not be attending...” • Extreme lack of courtesy to rejected parent - as evident in emails and texts. • AB can only come up with trivial, false and irrational reasons to justify their hatred.

Their allegations of abuse lacked any specificity and simply mirrored what their father said. • Reactions and perceptions are unjustified or disproportionate to mom’s behaviours – for example, AB’s overreaction to mother wanting medical information them. • In meetings with the psychologist, expressed denial of hope for reconciliation; no real acknowledgement of desire for reconciliation. • Expresses worry for preferred parent, desire to care for that parent. In AB’s case, Dr.

Torres’ noted, in her Report, that AB wished for her step-mother “to have peace, she is fragile.” • Extends hatred to extended family – also holds deep resentment towards maternal grandparents. • Stories about negative incidents with mother are repetitive but lacking in detail and depth. [ 66 ] BB exhibits similarly alienating behaviour, such as: • View of parents one-sided, all good or all bad; idealizes father and devalues mother. • Vicious vilification of mother with trivial, false and irrational reasons to justify hatred.

Asserts abuse but can only give one example: threat to “kick [them] in the ass.” • Reactions and perceptions unjustified or disproportionate to parent's behaviours. • No guilt or ambivalence regarding malicious treatment, hatred, etc. • Speech has a rehearsed quality. • Stories are repetitive and lacking in detail and depth, mimics what AB reports rather than own experience. • Denial of hope for reconciliation; no acknowledgement of desire for reconciliation with their mother. • Extends hatred to extended family. • Extreme lack of courtesy to rejected parent.

For example, in a text responding to birthday greetings from their mother, BB used a bigoted slur to refer to her. [ 67 ] On the whole of the evidence, I find that while there has been some estrangement by Ms. D, Mr. B has engaged in a campaign of alienation to a much more troubling degree. Together, Mr. B and his two older children have created a version of Ms. D based on a warped

interpretation of exaggerated historical negative interactions, that simply does not exist in real life. [ 68 ] I note that almost none of these behaviours or reactions are exhibited or shared by the youngest child, who is the only child to have spent time with Ms. D in the past three - four years. That child – the child who has not been estranged or alienated – obviously sees a very different, contemporary, and true to life version of their mother. Decision - Parenting Order [ 69 ] While I have found that this is a clear case of parental alienation by Mr. B, that finding is still only one aspect of the

complicated question of determining what parenting regime is in the best interests of the children in this case. [ 70 ] Ms. D requests that I reverse parenting of AB and BB, and certainly there are cases in which such an order was made after parental alienation was found: see for example, Malhotra and RMB v DTB , 2019 ABQB 826 . [ 71 ] Indeed, this case has many things in common with the fact scenario described in RMB .

That case involved two children (ages 13 and 10) who were involved in a shared parenting scenario, both of whom eventually began to live full-time with their father and refused to see their mother. The Court found that the father alienated the children from their mother. The Court expressed grave concern with the father’s failure to comply with court orders, and the father was found in contempt of court for failing to follow five court orders regarding parenting.

The Court granted the mother primary parenting and sole custody of the children; the father would have no access to, or communication with, the children. That decision was upheld on appeal: RMB v DTB , 2020 ABCA 11 . [ 72 ] Given the similarities between this case and RMB , it may seem that a similar result should follow. However, every parenting decision turns on its individual facts. Importantly, the children in RMB were younger than AB and BB, who are both teenagers. As courts have noted, teenagers often “vote with their feet” despite what a court may order.

This Court has noted that at a certain point, children reach an age where “[a] custody order, practically speaking, requires their cooperation...” ( SJB v RDBB , 2019 ABQB 624 at para 35 , aff’d 2020 ABCA 108 ). See also RG v KG , 2017 ONCA 108 where a Court determined that no one should have custody of a 17- year-old child who had effectively become independent and withdrew from parental control. [ 73 ] As set out in RMB , at para 112, there are four parenting options that follow a determination of parental alienation: 1. Do nothing and leave the child with the alienating parent; 2.

Direct a custody reversal by placing the child with the rejected parent; 3. Leave the child with the favoured parent and order therapy; or 4. Provide a transitional placement where the child is placed with a neutral party and therapy is provided so that eventually the child can be placed with the rejected parent. (See also JLZ v CMZ , 2021 ABCA 200 at para 63 ) [ 74 ] Mr. B suggested that I should “do nothing.” In his view, the older children have chosen him, and their choice should be respected.

He provided evidence that the children are doing well in school (although BB still has some challenges), have solid friendships, and are keeping up with their extracurricular sports and activities. They have good relationships with their step siblings, and their life with him is stable. In his words, the children appear to be “thriving in his care”. [ 75 ] However, I note there is also evidence that one of the children kept a major health-related issue a secret from their father for a significant period of time. That child was left to deal with the health crisis essentially on their own.

For this to have occurred while the child was living in Mr. B’s home, without him knowing, is clear evidence that the particular child is not, in fact, thriving in his care. [ 76 ] Further, applying some of the factors in s 16 of the Divorce Act , Mr. B has not maintained the children’s connection to their Jewish faith and upbringing; rather, this is something that the two older children no longer want to be a part of, because of its connection to their mother. Rejecting their Jewish grandparents is another aspect of this rejection of their faith and culture.

Additionally, as I understand it, the children have been forced to move several times over the past two years, and had to live in their paternal grandparents’ home, which indicates instability in living arrangements. There is also evidence that Mr. B was told several times that AB needed counselling, yet he did not cooperate in getting it for them. [ 77 ] Ms. D provided evidence that she has sought out and obtained therapy and parenting advice since the events of 2018/2019. She testified to being in a better place, and better able to handle the stressors related to parenting teens, while Mr.

B believes himself to be in no need of any kind of therapy or assistance. Ms. D has shown herself to be willing and able to adapt, and to try to make her home a better, safer place for the children should they be returned to her. The children also have step siblings in their mother’s home. Their step- father testified to having a good relationship with them prior to the events of 2018/2019. The house they would live in is their childhood home, and Ms. D testified that she was taking steps to have them participate in furnishing and decorating bedrooms in anticipation of their return.

Further, they would be in their mother’s home with their younger sibling. [ 78 ] For the Court to do nothing in this case, and simply leave the two older children in their father’s care would not be in their best interests, no matter what they may think or feel at the present time. Once again noting that the youngest child has been successfully moving between the two households, and noting the ages of the children, and the strength of their relationship with their mother prior to 2018/2019, I think that these children and their mother still have a chance to repair their relationship. [ 79 ] At trial Ms.

D suggested that one of her friends, Ms. X, could provide a transitional home for AB and BB. Ms. X gave evidence during the first part of the trial. Despite this friend’s best efforts to assist Ms. D, and despite Ms. D’s efforts to find a transitional placement, I cannot find that Ms. X is a suitable placement for AB and BB. AB and BB do not know Ms. X and have not had any contact with her for many years. She is essentially a stranger to them. Ms. X’s husband is often out of town and she is solo-parenting her own two children, who are very young and require her attention.

She has no experience dealing with teenagers. Most importantly, I do not accept that AB and BB will remain at Ms. X’s home if I place them there. I believe them when they say that they will run away. [ 80 ] This leaves me with two choices: reverse custody entirely with no transition period, or leave the children with their father and continue efforts at reunification. [ 81 ] Again: all decisions involving children must prioritize the best interests of the child.

Even though I firmly believe that AB and BB do not have reasonable or logical reasons to dislike their mother or avoid spending time with her, I accept that their feelings are genuine. If I reverse parenting and attempt to place AB and BB solely in the care of Ms. D, their irrational hatred for her will only

increase, and they will rebel, and almost certainly run away. I simply cannot make such an order; it is not in the best interests of AB or BB. [ 82 ] Mr. Keller took the position that the children have endured great emotional harm from their parents’ divorce and high conflict situation. I agree. He also noted that reversing parenting would be a dramatic change, which would cause further harm to the children. He noted that restructuring therapy itself was going to be very difficult for the children, and if that was to continue, stability in their living situation would be important.

Again, I agree. [ 83 ] I am therefore ordering that the two older children live with their father while reunification therapy continues, for a period of six months. The ultimate goal for that therapy will be a return to shared parenting.

I know that a shared parenting regime is possible despite everything that has happened, because the youngest child has been successfully moving between the two homes during the entirety of these proceedings. [ 84 ] If anyone fails to attend reunification therapy or counselling as directed by Sharon Smith, without reasonable excuse, then the matter will immediately be returned to me to show cause why custody should not be reversed entirely. [ 85 ] Finally, I agree entirely with Mr. Rollans’ observations that dating back to 2017, Mr.

B’s parenting decisions, and the older children’s various rebellions against their mother are inextricably linked to the issue of matrimonial property and money. Mr. Rollans did a thorough job of proving that in every case where Mr. B suffered a perceived financial or other setback in a court process, he responded within the week by either failing to comply with a parenting order, or seeking out a restraining order or EPO, or the children responded by refusing to see their mother, or in one case, by running away from their mother’s home. The children have been manipulated by Mr.

B and used as weapons of retaliation against their mother for any failure suffered by Mr. B in the courtroom. The children may not see that now, but they will understand it someday. [ 86 ] Clearly, these external financial stressors are impacting Mr. B’s ability to make mature parenting decisions that are in the best interests of his children. As such, it would be highly beneficial for the sake of the family reunification process, for the parties to resolve their matrimonial property dispute, which is something that is beyond the scope of these proceedings.

B) Contempt of Court [ 87 ] As mentioned, at the end of the trial I found Mr. B in contempt of court. Mr. B is in contempt of the March 18, 2021 Consent Order which set out the goals and process for reunification of Ms. D with AB and BB. Specifically, the contempt of that Order includes: • Failure to arrange counselling with Dr.

Carter between March of 2021 and October or November 2021. • Failure to abide by the agreement to pay for such counselling. • Refusal to abide by the agreement to refrain from bringing additional applications, notably two PN5s commenced and a Restraining Order. • Failure to get counselling for AB despite her need in March 2021. Applicable law [ 88 ] Rule 10.52(3) of the Alberta Rules of Court , Alta Reg 124/2010 , provides:

(3) A judge may declare a person to be in civil contempt of Court if (

a) the person, without reasonable excuse, (

i) does not comply with an order, other than an order to pay money, that has been served in accordance with the rules for service of commencement documents or of which the person has actual knowledge. [ 89 ] Rule 10.53 sets out available sanctions for contempt of court:

(1) Every person declared to be in civil contempt of Court is liable to any one or more of the following penalties or sanctions in the discretion of a judge: (

a) imprisonment until the person has purged the person's contempt; (

b) imprisonment for not more than 2 years; (

c) a fine and, in default of paying the fine, imprisonment for not more than 6 months; (

d) if the person is a party to an action, application or proceeding, an order that (

i) all or part of a commencement document, affidavit or pleading be struck out, (ii) an action or an application be stayed, (iii) a claim, action, defence, application or proceeding be dismissed, or judgment be entered or an order be made, or (iv) a record or evidence be prohibited from being used or entered in an application, proceeding or at trial.

(2) The Court may also make a costs award against a person declared to be in civil contempt of Court.

(3) If a person declared to be in civil contempt of Court purges the person's contempt, the Court may waive or suspend any penalty orsanction.

(4) The judge who imposed a penalty or sanction for civil contempt may, on notice to the person concerned, increase, vary or remit thepenalty or sanction. [90] Facially, these Rules are intended to assist private parties in ensuring that court orders obtained are complied with.Fundamentally, the stakes are much higher than that: “[t]he rule of law is directly dependent on the ability of the courts to enforce theirprocess and maintain their dignity and respect.” (United Nurses of Alberta v Alberta (Attorney General), (SCC), [1992]1 SCR 901, at 931) [91] Civil contempt, therefore, has two goals: “securing compliance with courts orders” and “protecting the integrity of theadministration of justice.” (Carey v Laiken, 2015 SCC 17 at para 40 (Carey) [92] If a court acts too quickly in finding contempt, they risk being seen as intemperate.

Contempt of court must not be treated asmerely a “means of enforcing judgement.” (Carey at para 36) However, if a court acts too slowly, or fails to act at all in the face ofcontinued failure to follow court orders, then there is a risk of eroding respect for the court’s authority, and ultimately, the rule of law. [93] Civil contempt, under the common law, requires proof of three things (Carey at paras 33 – 35): 1. The terms of the order in question must be clear 2. The breaching party must know about the order and its terms, and 3.

The breaching party must have intended the act or omission that resulted in the breach. [94] Intending to disobey, or deliberately choosing to disobey a court order is sometimes referred to as “contumacious intent.”Contumacious intent is not an element of civil contempt; rather, contumacy “goes to the penalty to be imposed following a finding ofcivil contempt.” (Carey at para 38) [95] The remedies for contempt of court set out in the Alberta Rules recognize the dual goals of civil contempt as described inCarey.

The Rules describe incarceration as both a means through which to enforce compliance: (Rule 10.53(1)(a)), and a means toprotect the integrity of the rule of law (Rule 10.53(1)(b)). [96] Incarceration is a hammer, and a hammer is rarely the right tool to use in high conflict family law situations. However, incases of obstinate contumacious intent with respect to continued failure to respect the parenting orders, incarceration may become thecourt’s last resort. [97] In the family law parenting context, jail sentences ranging from 2 to 90 days have been imposed on contemnors.

In most cases,the contemnor was given a chance to reduce the sentence through subsequent compliance: see Rea v Rea, 2019 ONCSC 551. Highersentences were imposed in situations where the contemnor had a demonstrated history of verbal and physical abuse: for example, a 60day prison term was imposed in Holt v Holt, 2015 MBQB 117. In Skalitzky v Skalitzky, 2014 ONSC 7433 the Court imposed a 6 daysentence which was suspended on condition of future compliance: see also M(SM) v H(JP), 2014 BCSC 1118. Analysis [98] In the present case, Mr.

B admitted on a number of occasions, including before me on the stand, that he knew about the termsof the parenting orders, but chose to disobey them. He was told of the consequences of contempt by several of my colleagues - JusticesSulyma and Fraser. He was specifically held in contempt at one point by Justice Macklin, who ordered him to pay costs. To date, thosecosts have not been paid.

For my part, I warned him on several occasions prior to the trial continuation, that his continued disobediencemight one day result in his incarceration. [99] The question for me at trial was therefore whether he had provided me with a reasonable excuse for refusing to follow theterms of my order. He was unable to do so. Mr. B agreed that he understood and consented to the March 18, 2021 Order and that hesimply did not follow it.

He then advised me that his work was picking up, money was flowing in, and he was now in a position to “takecare of these things”. [100] I therefore found beyond a reasonable doubt, that Mr. B had breached the Consent Order. [101] I reserved on the remedy or consequences of Mr. B’s contempt of court.

I mentioned at trial, and will reiterate here, thatmonetary fines in this case will simply put additional pressure on an already toxic family situation; furthermore, a fine is simply not asignificant enough consequence given the egregiousness or contumacy of the breaches in this case. [102] The other option I have is incarceration. [103] Mr. B has been threatened many times with contempt, by my colleagues and by me. He was previously held in contempt andordered to pay costs.

Those threats, findings of contempt and costs awards did nothing to curb his behaviour or to coerce his compliance [104] I am of the view that some period of incarceration is appropriate, and in fact necessary, in these circumstances. It is necessarybecause to allow Mr. B to continue to disobey court orders risks eroding respect for the administration of justice and the rule of law. [105] Some may wonder why, given these facts, the Court did not proceed with a criminal contempt hearing. Civil contempt is, of

course, quasi-criminal in nature. Proceeding under the rules of civil contempt in this situation means that Mr. B must face the consequences of his intransigence, but he will not accrue a criminal record. I note that the standard of proof I applied was proof beyond a reasonable doubt. [ 106 ] The consequence for Mr. B’s contempt of court will be six days gaol; however, implementation of this sentence will be suspended for six months pending further family reunification therapy and may be suspended indefinitely depending on his level of future compliance with the reunification process.

If the matter is brought back before me prior to that time for a “show cause” hearing on the issue of reversal of custody due to non-attendance or failure to cooperate with the process and directions of the reunification therapist, I will consider lifting the suspension at the same time. [ 107 ] The parties and Ms. Smith are to report back to me in six months’ time with respect to progress made towards a return to a shared parenting regime. [ 108 ] The issue of costs is also reserved for six months.

Heard on the 15 th , 16 th , 17 th , 18 th , 19th days of March, 2021, and the 9 th and 10 th of February, 2022, and the 3 rd of June, 2022 Dated at Edmonton, Alberta this 9 th day of December, 2022. T. Friesen J.C.K.B.A. Appearances: Sam Rollans Bruyer & Mackay LLP for the Plaintiff DB Self Represented Litigant Defendant Jeffrey T. Keller Legal Aid Alberta for the Children APPENDIX A

LIST OF INDICTORS OF PARENTAL ALIENATION (See: PC v WH , 2019 ABQB 616 at para 164 ) Child Behaviours: View of parents one-sided, all good or all bad; idealizes one parent and devalues the other Vicious vilification of target parent; campaign of hatred Trivial, false and irrational reasons to justify hatred Reactions and perceptions unjustified or disproportionate to parent's behaviours Talks openly to anyone about rejected parent's perceived shortcomings Extends hatred to extended family and pets (hatred by association) No guilt or ambivalence regarding malicious treatment, hatred, etc.

A stronger, but not necessarily healthy, psychological bond with alienating parent than with rejected parent Anger at rejected parent for abandonment; blames him/her for divorce Speech is brittle, a litany; obsessed; has an artificial quality; affect does not match words; no conviction; unchildlike, uses adult language; has a rehearsed quality Stories are repetitive and lacking in detail and depth Mimics what siblings report rather than own experience Denial of hope for reconciliation; no acknowledgement of desire for reconciliation Expresses worry for preferred parent, desire to care for that parent; or, defensive denial that child is indeed worried about parent Alienating Parent Behaviours: Allows and insists that child makes decisions about contact Rarely talks about the other parent; uninterested in child's time with other parent after contact; gives a cold shoulder, silent treatment, or is moody after child's return from visit.

No photos of target parent; removes reminders of the other parent Refusal to hear positive comments about rejected parent; quick to discount good times as trivial and unimportant No encouragement of calls to other parent between visits; rationalizes that child does not ask Tells child fun things that were missed during visit with other parent Indulges child with material possessions and privileges Sets few limits or is rigid about routines, rules and expectations Refuses to speak directly to parent; refuses to be in same room or close proximity; does not let target parent come to door to pick up child No concern for missed visits with other parent Makes statements and then denies what was said Body language and non-verbal communication reveals lack of interest, disdain and disapproval Engages in inquisition of child after visits Rejected parent is discouraged or refused permission to attend school events and activities Telephone messages, gifts and mail from other parent to child are destroyed, ignored or passed on to the child with disdain Distorts any comments of child that might justify accusations Does not believe that child has any need for relationship with other parent When child calls and is quiet or non-communicative, parent wrongly assumes pressure from target parent, or that child is not comfortable with target parent; evidence of bad parenting; does not appreciate that child is uncomfortable talking to alienating parent about target

parent Portrays other parent as dangerous, may inconsistently act fearful of other parent in front of child Exaggerates negative attributes of other parent, and omits anything positive Delusional false statements repeated to child; distorts history and other parent's participation in the child's life; claims other parent has totally changed since separation Projection of own thoughts, feelings and behaviours onto the other parent Does not correct child's rude, defiant and/or omnipotent behaviour directed towards the other parent, but would never permit child to do this with others Convinced of harm, when there is no evidence False or fabricated allegations of sexual, physical and/or emotional abuse Denigrates and exaggerates flaws of rejected parent to child Says other parent left "us", divorced "us" and doesn't love "us" Over-involves child in adult matters and litigation Child required to keep secrets and spy or report back on other parent Child required to be messenger Overt and covert threats to withdraw love and affection from child unless other parent is rejected Extreme lack of courtesy to rejected parent Relocation for minor reasons and with little concern for effects on child.